Seizing an individual’s assets as a form of punishment might seem like something reserved to gangs, the mafia, bookies, predatory lenders, loan sharks, and other people who are said to occupy the domain of the underworld economy. However, seizing assets as punishment is a common practice in both criminal and civil cases.  In the following paragraphs I am going to discuss how and if both civil and criminal asset forfeiture can be reconciled with the four basic philosophies of punishment: retribution, deterrence, incapacitation, and rehabilitation. Then, I will discuss the possibility of asset forfeiture leading to corruption is different parts of the correctional and criminal justice system.

            In the retribution philosophy of punishment, people are punished because they deserve it based on a justice system whose foundation is a transcendent moral order: (i.e. god or natural justice) In addition, under the retributive philosophy, people can only be punished because they deserve it and in proportion to the harm that was caused. For example, proportional punishment philosophy would not be in effect if we executed teenagers who were caught smoking marijuana and let murderers and rapists pay a small fine and be on their way. 

            So can asset forfeiture fit into the retributive philosophy of punishment? Regarding the deservedness portion of the retributive philosophy equation, in criminal asset forfeiture an item can only be seized if at least one guilty verdict is found on an arrest that allows forfeiture. Assuming that the types of things that one can be convicted of that allow asset forfeiture are legitimate; we can say that a person deserves to have their assets forfeited because they were found guilty of a crime. Furthermore, to get back what ever was seized a conviction must be overturned. This jives with the retributive philosophy because a person is not allowed to retrieve their possessions unless it is proved that they no longer deserve to be punished and thus have their conviction overturned.

            Civil asset forfeiture creates issues that do not turn up in criminal asset forfeiture. In civil asset forfeiture, there is no burden of proof to show that a person is guilty of a crime beyond a reasonable doubt. How can a person deserve to be punished for something if it they have not been proven and convicted in court that they actually did what we are accusing them of? In this way civil asset forfeiture goes against the retributive philosophy. Additionally, in order to get a seized asset back a person must post a bond, file a civil suit, and ultimately win that suit. This puts the burden of proof on the person who had their asset seized; that goes against the retributive philosophy of only punish those who deserve it.

            Proportionality is another tenant of the retributive philosophy that may not fit into both criminal and civil asset forfeiture in some cases. Instruments of crime can be seized in criminal cases. But what is an instrument of crime? A vague category like that can be bent and stretch in all sorts of different ways. For example, if I am sitting in my car on a cell phone negotiating a sale of drugs; in this case, both the cell phone and the car might fall under the category instruments of crime and thus would be sizeable. To further, the hypothetical, let’s say the amount of money that I would have received in the drug transaction was five hundred dollars and the total value of the cell phone and the car I was sitting in was fifty thousand dollars. Would it fit into the proportional doctrine if my punishment was a hundred times greater then any monetary value I would have gotten via the drug transaction? I don’t think anyone in their right mind would believe that was the case.

            Let’s now move on to the deterrence philosophy of punishment. Deterrence is based on the idea that people want to maximize their pleasure and minimize their pain. Thus, crime is a rational choice that people can be deterred from if the harm that can be caused via punishment that more then any potential gain that they would get from committing the crime.

            On its face, asset forfeiture fits into the deterrence model pretty well. Many crimes such as theft and drug dealing are committed in order to have some sort of monetary game. If a person is thinking rationally and they fear that they will be caught, then why would someone commit a crime to gain money or an asset if there is a chance that not only they would not have the new asset, but would lose assets that they already have in their possession.

            There are some problems with the line of thinking of the previous paragraph. The first issue is the assumption that crime is a rational choice; it may be rational, but many crimes such as theft of drug dealing are committed by desperate individuals who are poor and really need the money. If they are stealing or drug dealing in order to get enough money to meet their basic needs it would be pretty hard to deter them because it would be “rational” to try to get sustenance and or feed an addiction any way they could. Then there is the issue to quote Bob Dylan and others “when you got nothing, you got nothing to lose.” How can the threat of asset forfeiture deter someone who barely has any assets to forfeit? Then lets just say a person is convicted of a crime and has some of their assets seized; what we end up with is a person who is even more economically impaired then before. Since we know that people at the poorer end of the socioeconomic ladder are more likely to commit crimes, how can we tell ourselves that were are deterring someone by making them poorer?

            The issue of civil asset forfeiture creates even more paradoxes. In civil asset forfeiture a person has not yet been convicted of a crime. This leads to the question, how can we deter what a person has not been proven to have done? You can’t claim that deterrence of a behavior has occurred if that behavior was never going to have occurred in the first place. I mean that would like saying you deterred a country from creating weapons of mass destruction and using them against the United States and its allies when you could not prove that they possessed those weapons or planed to use them against U.S. and its allies. We all know something like that would never happen.

            Another philosophy of punishment is incapacitation or anything that limits a person’s ability to commit crime. (this can range from the death penalty to loss of a license) In many ways, criminal asset forfeiture seems to be able to accomplish this goal. Let’s look at some of the things that can be seized: Pure contraband can be seized. If the drugs or other contraband was taken away from a potential dealer by law enforcement, then it would appear that the ability to distribute the contraband would be extremely incapacitated. The instruments of crime can also be seized. If the boats, cars, cell phones, computers, et al that were used to by a criminal organization were seized; this again might limit the organization ability to commit crime. However, that theory does not always coincide with the practice. Many times low level criminals assets are seized at a higher frequency then criminals higher up on the organizational chart. This does not really incapacitate a criminal organization. This makes only a small dent in a multimillion dollar organizations profit margin and thus is does not really incapacitate. Even if you were successful in seizing a lot of contraband such as 90% of the cocaine in an organization, they still could turn a profit.

            Regarding civil asset forfeiture, many of the same limits of incapacitation are present. Large criminal organization might have more of an ability to post a bond, and fight suits, in order not to lose any items and be incapacitated.

            Now let’s look at civil asset forfeiture and rehabilitation. The idea of rehabilitation is to fix or heal you in order for you to not want to commit crimes again. This is the philosophy of punishment that asset forfeiture can least be reconciled with in both the civil and criminal cases. How can losing your assets in any way be considered a way of making you a better person? There are a few arguments for this but they are not very strong. One person might say forcing someone to live meekly could build character in an individual.. On the other hand, as we have stated before making someone poor and with little assets usually is a recipe for that person to commit more crime not less.

            Finally, asset forfeiture can open up huge cans of worms that could lead to corruption of the criminal justice system. If you ask a teacher what they need to be a more effective teacher, he or she would tell you the latest technology, smaller classes, better equipment, more pay so for overtime and lots of other things that would require cash. People who work in the realm of criminal justice from small town police departments to the D.E.A. believe they have similar needs in order to do their job the best they can. However, with tight budgets, it is hard for law enforcement officials to get the equipment they think they need to fight crime and the pay that they feel they deserve. One way to reconcile the difference in the police budget vs. police needs is by attaining money and goods via asset forfeiture for the law enforcement budgets. In fact the D.E.A seized more then its annual budget in 1987. Because the asset seized are from criminals (convicted or alleged), there were also be little public outcry over asset forfeiture being used to generate funds to help police departments.

            This type of dynamic can lead the system further down the rabbit whole of corruption. If the justice system is trying to get money to fund itself via asset forfeiture they will most likely take the path of least resistance. Since major criminal organization like Columbian drug lords and La Costa Nostra have the financial means to fight asset forfeiture, the easiest way to seize and gain assets is from every day folks who either have actually committed a crime or were suspected of committing a crime. If someone has a few thousand dollar in assets seized by the police it might not even behoove the individual who had their asset seized to fight it; they must pay their own attorney fees and don’t get back those fees back even if they win. If the amount seized is less then 10 thousand in many cases it would be a net loss for an individual to fight the case. It also puts the burden of proof on the individual in a case like the police “suing your car” for being involved in some sort of criminal activity. This again goes against what we perceive to be the American system of justice. Then there is the possibility of stings where for example a police officer might try to sell you crack while you are sitting in your car in order to justify seizing that car.

            In the end, asset forfeiture can fit in some ways, but can not be completely reconciled with any of the four theories of punishment. What's more, asset forfeiture can lead to corruption of the justice system. In order for any form of asset forfeiture to continue with out as much abuse strong oversight is needed by elected officials, the public, and the media. There needs to be systems in place where people working in the corrections system do not directly benefit as much from asset forfeiture in order to prevent corruption. An idea to achieve this goal would be to pass a law that requires proceeds from asset forfeiture to go into programs that help prevent people from committing crime such as drug rehab centers. If that type of law proved to be too much of a political hot potato, then maybe the proceeds can be required to go to some sort of charity that nearly everyone can agree is noble like the Jimmy Fund which helps children stricken with cancer. There also should be reforms that make it easier for people who believe they had asset seized unjustly by the police or any government agency to sue the government for not only their assets back but additional damages. These reforms would hopefully lead to asset forfeitures only being used in the cases when the there is the strongest case for it and limit the benefit of trumping up charges in order to generate funds for police and law enforcement agencies budgets.